Memo

BILL NUMBER:S3901

TITLE OF BILL:

An act to amend the military law, in relation to the regulation of protests at military funerals

PURPOSE:

This bill establishes a 500 foot Military funeral buffer zone public safety program for localities, provides that any protest of any military funeral, memorial service, wake, burial or procession to or from the same, which takes place between 500 and 2,500 feet of such event may only be held upon the receipt of a permit issued by the Division of Military and Naval Affairs, together with the posting of a public security bond, and establishes civil and criminal penalties for violation of such requirements.

SUMMARY OF SPECIFIC PROVISIONS:

Section One of this bill would add a new section 255 to the military law, to:

1. Establish a legislative intent for the compelling state interest in protecting the mourners at military funerals;

2. Create a Military funeral buffer zone public safety program, where any city, town, village or county can establish by local law, such a program, to require, that any citizen or group that conducts a protest at a distance between 500 and 2,500 feet of the vicinity of a funeral, memorial service, wake, burial or procession of a deceased member of the active military service of the United States or the force of the organized militia, may do so only after first obtaining a permit from the New York State Division of Military and Naval Affairs.

3. That the division would establish the permit form and requirements not set forth in statute by regulation, and further require that the applicant also post a public security bond, in an amount from between $5,000 and $25,000+ depending upon the number of persons at the protest.

4. That in security bond would be refunded and returned to the applicant, upon a determination from the governing body of the local government in which the protest occurred, that the protest which was held complied in air respects with the requirements of the permit. In the event that such a determination is not made by the governing body of such locality, the division would conduct a hearing to determine where the bond proceeds should be paid, including to the locality, a person connected with the funeral of the military personnel, the applicant, or all of the above.

5. That pursuant to a violation of the permit, a town, city, village or county court could assess a civil penalty, and in the event that

such violation is deemed to be intentional, such person would be guilty of a class A misdemeanor.

Section Two of this bill would provide for an immediate effective date.

JUSTIFICATION:

Recently, on March 2, 2011, the Supreme Court of the United States issued a decision in the case of Synder v. Phelps, 562 U.S.____(2011), Slip Opinion - No.09-751. In such case, the Court found that protests at military funerals, are viewed as constitutionally protected free speech. The court, however, also recognized that states also have a compelling state interest to protect the family and friends mourning at such military funerals. The Snyder decision, did in fact, acknowledge a Maryland State Law, which was enacted after the case had been sued, which establishes time, place and manner restrictions on the protesting of military funerals, and prohibits protests within a specific distance of such events.

The Synder case specifically recognizes that there are individuals and groups who seek to use military funerals as a protest mechanism to advance their ideology. The Syder case further held that as long as the First Amendment remains in force, the right of Americans to express even the most unseemly ideas is constitutionally protected. Despite this holding, however, the Court did recognize that such protests can, however, be limited by states, with respect to their time, place and manner.

This bill would authorize localities to establish the buffer protection zone recognized by the Snyder Court, by prohibiting the protesting of a military funeral within 500 feet of the funeral, burial, wake, memorial service, or procession of such deceased military personnel member, and by requiring that any protest taking place at a location between 500 and 2500 feet from such funeral, may only be conducted after being issued a permit by, and posting a security bond with, the Division of Military and Naval Affairs.

It is through the establishment of this buffer zone, that this bill seeks to balance the constitutionally protected free speech rights of protesting individuals with the need for protection and privacy of mourning friends and family of deceased military personnel. In providing this program, this bill attempts to strike the correct balance, and address this very important issue.

LEGISLATIVE HISTORY:

This is a new bill.

FISCAL IMPLICATIONS:

None noted.

EFFECTIVE DATE:

This act would take effect immediately.

Text

STATE OF NEW YORK
________________________________________________________________________
3901
2011-2012 Regular Sessions
IN SENATE
March 9, 2011
___________

Introduced by Sens. ZELDIN, GRIFFO, BALL, SKELOS, ALESI, BONACIC,
DeFRANCISCO, FARLEY, FLANAGAN, FUSCHILLO, GALLIVAN, GOLDEN, GRISANTI,
HANNON, JOHNSON, LANZA, LARKIN, LAVALLE, LIBOUS, LITTLE, MARCELLINO,
MARTINS, MAZIARZ, McDONALD, NOZZOLIO, O'MARA, RANZENHOFER, RITCHIE,
ROBACH, SALAND, SEWARD, YOUNG -- read twice and ordered printed, and
when printed to be committed to the Committee on Veterans, Homeland
Security and Military Affairs
AN ACT to amend the military law, in relation to the regulation of
protests at military funerals
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The military law is amended by adding a new section 255 to
read as follows:
S 255. REGULATION OF PROTESTS AT MILITARY FUNERALS. 1. LEGISLATIVE
INTENT. THE LEGISLATURE FINDS AND DETERMINES THAT ALTHOUGH IT IS IMPOR-
TANT FOR OUR STATE'S CITIZENS TO BE ABLE TO EXERCISE THEIR CONSTITU-
TIONALLY PROTECTED RIGHT TO FREE SPEECH, THERE IS ALSO A COMPELLING
STATE INTEREST IN PRESERVING AND PROTECTING THE FAMILIES AND FRIENDS OF
DECEASED MILITARY PERSONNEL, ESPECIALLY AT SUCH A SOLEMN TIME AS THE
DECEASED MILITARY PERSONNEL'S FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR
PROCESSION TO OR FROM THE SAME.
THE LEGISLATURE FURTHER FINDS AND DETERMINES THAT IN ORDER TO BALANCE
THE CONSTITUTIONALLY PROTECTED RIGHT TO FREE SPEECH, AND THE COMPELLING
STATE INTEREST IN PRESERVING AND PROTECTING THE MOURNING FAMILIES AND
FRIENDS OF DECEASED MILITARY PERSONNEL, THE STATE POLICE POWERS, AND
THOSE OF ITS LOCALITIES, MAY BE EMPLOYED TO PROVIDE SUFFICIENT
PROTECTION OF THE FAMILIES AND FRIENDS OF SUCH DECEASED MILITARY PERSON-
NEL, AT SUCH A SOLEMN TIME AS THE DECEASED MILITARY PERSONNEL'S FUNERAL,
MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION TO OR FROM THE SAME.
THE LEGISLATURE FURTHER FINDS AND DETERMINES THAT IN ADDITION TO ANY
STATE PROHIBITION WHICH MAY BE IMPOSED UNDER THE PENAL LAW, WITH RESPECT

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10109-02-1

S. 3901 2

TO THE EXERCISE OF FREE SPEECH WITHIN A CERTAIN DISTANCE FROM A FUNERAL,
MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION TO OR FROM THE SAME, THAT
THERE IS ALSO A COMPELLING STATE INTEREST IN PROVIDING FOR A SAFETY AND
PROTECTION BUFFER ZONE, WITHIN WHICH THE EXPRESSION OF SUCH FREE SPEECH
RIGHTS MAY ONLY BE EXERCISED, PURSUANT TO A CONTROLLED, REGULATED,
PERMITTED SYSTEM, IN ORDER THAT THE PUBLIC PEACE AND SAFETY OF THE MOUR-
NERS, PROTESTERS, AND THE GENERAL PUBLIC CAN BE EFFECTIVELY MAINTAINED.
THE LEGISLATURE FURTHER FINDS AND DETERMINES THAT IT IS THE INTENT OF
THIS LEGISLATION TO PROVIDE FOR THE STANDARDS OF SUCH SAFETY AND
PROTECTION BUFFER ZONES, AND THAT IN SO DOING, SEEKS TO ESTABLISH THE
REQUIRED BALANCE BETWEEN THE ABILITY OF OUR STATE'S CITIZENS TO EXERCISE
THEIR CONSTITUTIONALLY PROTECTED RIGHT TO FREE SPEECH AND THE COMPELLING
STATE INTEREST IN PRESERVING AND PROTECTING THE MOURNING FAMILIES AND
FRIENDS OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF THE
UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA.
2. MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM. ANY CITY, TOWN,
VILLAGE OR COUNTY, MAY, BY LOCAL LAW, ESTABLISH A MILITARY FUNERAL BUFF-
ER ZONE PUBLIC SAFETY PROGRAM. SUCH PROGRAM SHALL REQUIRE THAT ANY
CITIZEN OR GROUP THAT CONDUCTS A PROTEST WITHIN TWO THOUSAND FIVE
HUNDRED FEET OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR PROCESSION
OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF THE UNITED STATES
OR THE FORCE OF THE ORGANIZED MILITIA, MAY DO SO ONLY AFTER FIRST
OBTAINING A PERMIT FROM THE NEW YORK STATE DIVISION OF MILITARY AND
NAVAL AFFAIRS (HEREINAFTER "DIVISION"). UPON THE ISSUANCE OF A PERMIT
UNDER THIS SUBDIVISION TO CONDUCT SUCH A PROTEST IN A LOCALITY, THE
DIVISION, IN ADDITION TO WHATEVER REQUIREMENTS IT SHALL ESTABLISH BY
REGULATION, SHALL REQUIRE THAT:
A. THE CITIZEN OR GROUP FILE AN APPLICATION FOR A PERMIT TO CONDUCT A
PROTEST IN THE VICINITY OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL OR
PROCESSION OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF THE
UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA, WITH THE DIVISION,
IN THE MANNER AND FORM AS MAY BE REQUIRED BY THE DIVISION PURSUANT TO
REGULATION, NOT LESS THAN SEVEN BUSINESS DAYS PRIOR TO THE DATE OF THE
PROTEST;
B. THE CITIZEN OR GROUP FILING SUCH APPLICATION, SHALL AT THE TIME OF
THE FILING OF SUCH APPLICATION, ALSO POST A PUBLIC SECURITY BOND WITH
THE DIVISION, IN THE MANNER AND FORM AS MAY BE REQUIRED BY THE DIVISION
PURSUANT TO REGULATION, IN THE AMOUNT AS FOLLOWS:
(I) FOR A PROTEST WITH ONE TO FIVE PERSONS, FIVE THOUSAND DOLLARS;
(II) FOR A PROTEST WITH SIX TO TEN PERSONS, SEVEN THOUSAND FIVE
HUNDRED DOLLARS;
(III) FOR A PROTEST WITH ELEVEN TO TWENTY-FIVE PERSONS, TEN THOUSAND
DOLLARS;
(IV) FOR A PROTEST WITH TWENTY-SIX TO FIFTY PERSONS, FIFTEEN THOUSAND
DOLLARS;
(V) FOR A PROTEST WITH FIFTY-ONE TO SEVENTY-FIVE PERSONS, TWENTY THOU-
SAND DOLLARS;
(VI) FOR A PROTEST WITH SEVENTY-FIVE TO ONE HUNDRED PERSONS,
TWENTY-FIVE THOUSAND DOLLARS; AND
(VII) FOR A PROTEST WITH OVER ONE HUNDRED PERSONS, TWENTY-FIVE THOU-
SAND DOLLARS PLUS AN ADDITIONAL AMOUNT PER PROTESTOR AS SHALL BE ESTAB-
LISHED PURSUANT TO REGULATION BY THE DIVISION;
C. WITHIN THREE BUSINESS DAYS OF THE FILING OF AN APPLICATION PURSUANT
TO PARAGRAPH A OF THIS SUBDIVISION, TOGETHER WITH THE POSTING OF THE
REQUIRED SECURITY BOND PURSUANT TO PARAGRAPH B OF THIS SUBDIVISION, THE
DIVISION SHALL REVIEW SUCH APPLICATION AND SECURITY BOND, AND IF SUCH

S. 3901 3

APPLICATION AND BOND SATISFY ALL THE REQUIREMENTS OF THIS SECTION, AS
WELL AS ALL THE REQUIREMENTS THAT THE DIVISION MAY FURTHER IMPOSE BY
REGULATION, THEN THE DIVISION SHALL ISSUE TO THE APPLICANT, A PERMIT TO
CONDUCT SUCH PROTEST, AND SUCH PERMIT SHALL EXPRESSLY, AND IN DETAIL,
SET FORTH THE TIME, PLACE AND MANNER OF RESTRICTIONS OF THE PROTEST AS
ALLOWABLE BY LAW;
D. UPON ISSUING A PERMIT TO CONDUCT A PROTEST UNDER THIS SECTION, THE
DIVISION SHALL ALSO TRANSMIT A COPY OF THE PERMIT, TOGETHER WITH THE
APPLICATION FOR THE SAME, TO THE LOCALITY IN WHICH THE APPLICANT SEEKS
TO CONDUCT THE PROTEST;
E. UPON RECEIVING A PERMIT FROM THE DIVISION, AND NOT LESS THAN
FORTY-EIGHT HOURS PRIOR TO THE CONDUCT OF THE PROTESTS, THE APPLICANT
SHALL ALSO FILE WITH EACH CITY, TOWN, VILLAGE, AND COUNTY, IN WHICH THE
PROTEST IS AUTHORIZED TO OCCUR, A COPY OF THE PERMIT ISSUED BY THE DIVI-
SION;
F. THE PERMIT ISSUED BY THE DIVISION SHALL PROVIDE THAT THE PROTEST,
FOR WHICH A PERMIT WAS ISSUED BY THE DIVISION, AND FOR WHICH A SECURITY
BOND WAS FILED, SHALL BE CONDUCTED EXCLUSIVELY IN THE MANNER, PLACE AND
TIME, AS SPECIFIED AND AUTHORIZED IN THE PERMIT;
G. IN NO EVENT SHALL ANY PROTEST EVER BE CONDUCTED, NOR SHALL THE
DIVISION EVER ISSUE A PERMIT FOR THE CONDUCT OF ANY PROTEST, WITHIN FIVE
HUNDRED FEET OF ANY FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL, OR PROC-
ESSION TO OR FROM THE SAME, OF A MEMBER OF THE ACTIVE MILITARY SERVICE
OF THE UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA;
H. WITHIN THIRTY DAYS OF THE DATE OF THE PROTEST FOR WHICH THE PERMIT
WAS ISSUED BY THE DIVISION, THE GOVERNING BODY OF THE LOCALITY IN WHICH
SUCH PROTEST WAS HELD, BY A MAJORITY VOTE OF THE MEMBERS OF SUCH GOVERN-
ING BODY, SHALL MAKE A DETERMINATION AS TO WHETHER SUCH PROTEST COMPLIED
IN ALL RESPECTS WITH ALL THE REQUIREMENTS OF THE PERMIT, AND SHALL THER-
EUPON NOTIFY THE DIVISION OF SUCH DETERMINATION;
I. UPON THE NOTIFICATION BY A LOCALITY THAT A PROTEST WAS HELD WHICH
COMPLIED IN ALL RESPECTS WITH ALL THE REQUIREMENTS OF THE PERMIT, THE
DIVISION SHALL, WITHIN THIRTY DAYS, RELEASE AND REFUND THE SECURITY BOND
FILED BACK TO THE APPLICANT, UNLESS REQUIRED TO DO OTHERWISE BY A COURT
OF COMPETENT JURISDICTION;
J. IN THE EVENT THAT AN APPLICANT FILES A SECURITY BOND WITH THE DIVI-
SION, AND THEREAFTER FILES A WITHDRAWAL OF THE APPLICATION, DUE EITHER
TO THE FACT THAT THE PROTEST NEVER OCCURRED OR THAT THE APPLICANT NO
LONGER DESIRED TO HOLD A PROTEST, THE DIVISION, UPON FINDING THAT SUCH
APPLICATION FOR WITHDRAWAL IS MERITORIOUS, SHALL, WITHIN THIRTY DAYS,
RELEASE AND REFUND THE SECURITY BOND FILED BACK TO THE APPLICANT, UNLESS
REQUIRED TO DO OTHERWISE BY A COURT OF COMPETENT JURISDICTION;
K. IN THE EVENT THAT THE GOVERNING BODY OF THE LOCALITY IN WHICH SUCH
PROTEST WAS HELD MAKES A DETERMINATION, BY A MAJORITY VOTE OF THE
MEMBERS OF SUCH GOVERNING BODY, THAT SUCH PROTEST DID NOT COMPLY IN ALL
RESPECTS WITH ALL THE REQUIREMENTS OF THE PERMIT, THEN THE DIVISION,
PURSUANT TO REGULATIONS, SHALL CONDUCT A HEARING, WHEREUPON IT SHALL
MAKE A DETERMINATION AS TO WHETHER THE APPLICANT SHALL FORFEIT ALL OR
ANY PART OF THE BOND, WITH THE PROCEEDS OF THE BOND BEING AWARDED TO:
(I) THE LOCALITY;
(II) A PERSON OR PERSONS CONNECTED WITH THE FUNERAL, MEMORIAL SERVICE,
WAKE, BURIAL OR PROCESSION WHICH WAS THE SUBJECT OF THE PROTEST;
(III) THE APPLICANT; OR
(IV) ANY COMBINATION OF THE ABOVE; AND
L. IN THE EVENT THAT THE DIVISION MAKES A DETERMINATION THAT ALL OR
ANY PART OF THE SECURITY BOND SHALL NOT BE RETURNED AND REFUNDED TO THE

S. 3901 4

APPLICANT, THE DIVISION SHALL MAKE PAYMENT TO THOSE PARTIES THAT IT
DETERMINED SHOULD RECEIVE THE PROCEEDS OF SUCH SECURITY BOND, WITHIN
THIRTY DAYS OF MAKING SUCH DETERMINATION, UNLESS REQUIRED TO DO OTHER-
WISE BY A COURT OF COMPETENT JURISDICTION.
3. THE DIVISION, AND ANY LOCALITY, SHALL NOT REQUIRE A PERMIT, OR
SECURITY BOND, FOR ANY PROTEST OF ANY FUNERAL, MEMORIAL SERVICE, WAKE,
BURIAL, OR PROCESSION TO OR FROM THE SAME, OF A MEMBER OF THE ACTIVE
MILITARY SERVICE OF THE UNITED STATES OR THE FORCE OF THE ORGANIZED
MILITIA, WHERE SUCH PROTEST IS CONDUCTED EXCLUSIVELY AT A DISTANCE OF
MORE THAN TWO THOUSAND FIVE HUNDRED FEET FROM ANY SUCH FUNERAL, MEMORIAL
SERVICE, WAKE, BURIAL, OR PROCESSION TO OR FROM THE SAME.
4. VIOLATIONS OF MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM.
ANY CITY, TOWN, VILLAGE OR COUNTY, WHICH HAS BY LOCAL LAW, ESTABLISHED A
MILITARY FUNERAL BUFFER ZONE PUBLIC SAFETY PROGRAM, WHEREBY SUCH LOCALI-
TY HAS REQUIRED THAT ANY CITIZEN OR GROUP THAT CONDUCTS A PROTEST IN THE
VICINITY OF A FUNERAL, MEMORIAL SERVICE, WAKE, BURIAL, OR PROCESSION TO
OR FROM THE SAME, OF A DECEASED MEMBER OF THE ACTIVE MILITARY SERVICE OF
THE UNITED STATES OR THE FORCE OF THE ORGANIZED MILITIA, MUST FIRST
OBTAIN A PERMIT FROM THE DIVISION, IN ORDER TO CONDUCT SUCH A PROTEST,
UPON RECEIVING A PERMIT, UNDER THIS SECTION TO CONDUCT SUCH A PROTEST,
MAY POST A POLICE OFFICER FROM SUCH CITY, TOWN, VILLAGE OR COUNTY, AT
THE SITE OF THE PROTEST, IN ORDER TO ASSURE THE MAINTENANCE OF CIVIL
OBEDIENCE AND THE PUBLIC PEACE. IN THE EVENT THAT AFTER THE CONDUCT OF
SUCH PROTEST, A COURT OF THE CITY, TOWN, VILLAGE OR COUNTY DETERMINES
THAT THE PROTEST WAS EITHER INTENTIONALLY OR UNINTENTIONALLY NOT
CONDUCTED IN EXPRESS ACCORDANCE WITH THE PERMIT ISSUED BY THE DIVISION,
THEN SUCH COURT MAY IMPOSE A CIVIL PENALTY UPON EACH AND EVERY PROTESTER
WHO PARTICIPATED IN ANY PROTEST FOUND TO BE IN VIOLATION OF THE PERMIT
ISSUED BY THE DIVISION. THE AMOUNT OF SUCH CIVIL PENALTY SHALL NOT
EXCEED FIVE HUNDRED DOLLARS. THE INTENTIONAL VIOLATION BY A PROTESTER,
OF A PERMIT ISSUED BY THE DIVISION, SHALL BE A CLASS A MISDEMEANOR.
S 2. This act shall take effect immediately.

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